[Senate Report 116-45]
[From the U.S. Government Publishing Office]
Calendar No. 110
116th Congress } { Report
SENATE
1st Session } { 116-45
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TO NULLIFY THE SUPPLEMENTAL TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE CONFEDERATED TRIBES AND BANDS OF INDIANS OF MIDDLE OREGON,
CONCLUDED ON NOVEMBER 15, 1865
_______
June 10, 2019.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 832]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 832) to nullify the Supplemental Treaty Between the
United States of America and the Confederated Tribes and Bands
of Indians of Middle Oregon, concluded on November 15, 1865,
having considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
PURPOSE
The purpose of S. 832 is to nullify the Supplemental Treaty
between the United States and the Confederated Tribes and Bands
of Indians of Middle Oregon,\1\ which was executed on November
15, 1865.
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\1\In 1855, upon execution of the original 1855 Treaty these tribes
were collectively referred to as the Confederated Tribes and Bands of
Middle Oregon. In 1937, three Indian tribes, the Warm Springs, Wasco,
and Paiute organized as the Confederated Tribes of the Warm Springs
Reservation of Oregon by adopting a constitution and by-laws for tribal
government under the Indian Reorganization Act.
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NEED FOR LEGISLATION
S. 832 will repeal and nullify the Supplemental 1865 Treaty
between the United States of America and the Confederated
Tribes and Bands of Indians of Middle Oregon, thereby leaving
the 1855 Treaty intact.
The Constitution grants powers to the President to
negotiate treaties, which are subject to ratification by the
Senate.\2\ The Constitutional authority to ratify treaties can
also grant Congress the authority to abrogate treaties. The
Supreme Court has held that when abrogating a treaty between
the United States and an Indian tribe, Congress must do so
explicitly.\3\
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\2\Article II, Section 2, Clause 2 of the United States
Constitution.
\3\Herrera v. Wyoming, --U.S. --, No. 17-532 (May 20, 2019).
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Congress is the only body with constitutional authority to
nullify the Supplemental 1865 Treaty, ensuring that it does not
have any legal effect.
BACKGROUND
1855 Treaty. In 1855, the Confederated Tribes of Warm
Springs Tribe (Tribe) entered into a treaty with the United
States government that ceded the Tribe's territorial interests
in exchange for consideration that included a reservation and
monetary compensation.
In addition to providing certainty of the Tribe's
territorial interests, the 1855 treaty also contemplated
certain off-reservation hunting and fishing rights;
specifically, the right of the Tribe to fish ``at all other
usual and accustomed stations, in common with citizens of the
United States,'' and ``the privilege of hunting . . . on
unclaimed lands, in common with citizens.''
Supplemental 1865 Treaty. In 1865, the Superintendent of
Indian Affairs for Oregon, J.W. Perit Hunting, drafted a
supplemental treaty to amend the 1855 treaty. During a
legislative hearing before the Committee on S. 832, Principal
Deputy Assistant Secretary for Indian Affairs at the Department
of the Interior, John Tahsuda, testified that the Supplemental
1865 Treaty provided terms that created ``unreasonable
restrictions on the rights of the Warm Springs people.''
The Supplemental 1865 Treaty with the Tribe contained
provisions that led to the relinquishment of previously
reserved off-reservation hunting and fishing rights, and
physically restricted the Tribe to its reservation unless
written permission was granted by the federal superintendent of
Indian Affairs for Oregon to travel outside the boundaries of
the reserve.
On June 20, 1997, the U.S. Forest Service produced a report
that concluded, among other things, that the tribal leaders'
signatures on the Supplemental 1865 Treaty were obtained by
fraudulent means.
Actions by the State of Oregon. On January 31, 2019,
Governor of the State of Oregon, Kate Brown, issued a formal
policy to the Tribe regarding the Supplemental 1865 Treaty. In
a letter to the Tribe, Governor Brown wrote to affirm that it
will be the ``[P]olicy of the office of the Governor . . . to
regard the 1865 treaty as a nullity with no effect
whatsoever.'' Governor Brown's letter provided that ``[N]o
state agency or official under . . . shall assert on behalf of
the State that the fraudulent Huntington Treaty of 1865 has
now, or ever has had, any legal effect whatsoever.''
LEGISLATIVE HISTORY
On March 14, 2019, Senator Merkley introduced S. 832 with
Senator Wyden co-sponsoring. The bill was referred to the
Committee. On May 01, 2019, the Committee held a legislative
hearing on the bill. Principal Deputy Assistant Secretary for
Indian Affairs, John Tahsuda, testified the Department does not
object to the bill. Councilman Ron Suppah from the Confederated
Tribes of Warms Springs provided testimony in favor of the
bill. On May 15, 2019, the Committee held a duly called
business meeting to consider S. 832. No amendments were
offered, and the bill was ordered to be reported favorably.
An identical companion bill, H.R. 1803, was introduced in
the House of Representatives by Congressman Walden on March 14,
2019. The bill was referred to the Subcommittee on Indigenous
Peoples of the United States, and on June 5, 2019 the
Subcommittee held a legislative hearing on the bill.
In the 104th Congress, Senator Hatfield introduced an
identical version of S. 832 on September 20, 1996. The bill was
placed on the Senate Legislative Calendar, but no further
action was taken on it.
SECTION-BY-SECTION ANALYSIS OF S. 832
Section 1. Nullification of Treaty
This section directs that the Supplemental Treaty concluded
on November 15, 1865, and entered into pursuant to the Senate
resolution of ratification dated March 2, 1867 (14 Stat. 751),
shall have no force or effect.
COST AND BUDGETARY CONSIDERATIONS
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 832, a bill to
nullify the Supplemental Treaty Between the United States of
America and the Confederated Tribes and Bands of Indians of
Middle Oregon, concluded on November 15, 1865.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 832 would nullify a treaty between the United States and
the Confederated Tribes of Warm Springs, a federally recognized
Indian tribe in the state of Oregon that was signed in 1865.
According to the Department of the Interior the treaty has
never been enforced. Based on that information, CBO estimates
that enacting S. 832 would have no effect on the federal
budget.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 832.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 832 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
On February 6, 2019, the Committee unanimously approved a
motion to waive subsection 12 of rule XXVI of the Standing
Rules of the Senate. In the opinion of the Committee, it is
necessary to dispense with subsection 12 of rule XXVI of the
Standing Rules of the Senate to expedite the business of the
Senate.
[all]